Judicial activism, abused youths

"Justice must be seen to be done as well as to be done."~ Justice Oliver Wendell Holmes, Jr.

Quebec, and indeed all of Canada, witnessed the scales of justice falling and the sword of justice blunted once again this past week. A five-judge panel of the Quebec Court of Appeal, which included Pierrette Rayle the wife of Judge John Gomery, ordered the censure and removal of youth court Judge Andrée Ruffo for repeatedly speaking out on the inadequacies of the youth protection system.

Her "crime" was that she was heard in public, and not just seen in courtrooms, lending her voice and vision in support of aiding abused youths and reforming the system that has failed them so spectacularly and so often. In a society that runs between the raindrops, populated by citizens that dare not care, ruled by governors who can no longer tell right from wrong, this ruling should come as no surprise.

We live in a country that applauds McCarthyite witch-hunts that encourage innuendo, rumour and guilt by association in order to protect powerful vested interests, but we denounce those who speak truth to power and dare to challenge those same interests. As Judge Ruffo put it so well, "We have created codes and perverted our very language to shield a status quo that in so many cases does evil and brings harm to some of the most vulnerable among us."

Defiant as always, Judge Ruffo intends to challenge this ruling in the Supreme Court. Only one other judge in the history of Quebec has been ordered removed. That Judge was Richard Therrien, who had failed to disclose his past membership in the terrorist FLQ. I guess free speech is now as threatening to the state as fire bombs.

The Ruffo affair is as eloquent a testament to the need for radical judicial reform as there ever was. Canadians like to pretend to support an "activist" judiciary, but when we finally see an activist judge who walks the walk and not only talks the talk, she is silenced. Judicial activism cannot be narrowly defined as dry words on paper. Law, as Lord Acton wrote, must never be allowed to be used as a two-edged sword of craft and oppression. It must become the "...shield of the innocent and the staff of the honest..." Judges like Ruffo who lend their names to petitions; who speak out; who attempt to rouse the resolve of a feckless public are those very shields and staffs.

We need to break loose the chains that keep locked the doors of courts and council rooms apart and let in the brisk, stinging air of freedom to blow away the calcified cobwebs that clog the arteries of justice made so sclerotic by decades of judicial clubbiness and chumminess. We need to bring to an end law by dictat and fiat so far removed from the very citizens it judges. We need an elected judiciary accountable and responsible to the people, not just to its own judicial boards and political overseers.

A great irony in the Ruffo affair is that only the Quebec Minister of Justice can actually remove her from office. Yet how can any elected official remove her in good conscience when there have been so many cases of judicial interference by elected officials, even Ministers, with no reprimand whatsoever? Those were cases of the compromise of judicial independence. Ruffo has only been reprimanded for speaking out against a youth protection system that does not work. Not for compromising the integrity of cases in her court.

In an interview given recently, Judge Ruffo recounted how a judicial colleague made light of her naiveté soon after her appointment because she had exhibited a belief that judicial independence really existed in Canada. She has learned through bitter experience how right her senior colleague's cynicism was.

This is not to say that there are not many excellent and independent judges in our system. There are. But Canadians' constant boast that our appointed judiciary is somehow more superior than America's elected one is nothing but sophomoric sophistry. No judicial system will ever be free of political interference. We should all just be big boys and girls and get used to that. Not every social ill can be resolved. But at least with an elected judiciary there will be a chance for the public and the Fourth Estate to examine compromises of judicial trust out in the open and not allow the political elites that appoint judges to hide behind the cloaks of stomach-churning false pieties.

One of Judge Ruffo's actions particularly irritated the Appeals Court panel. In 1988, she ordered two teenagers driven to the office of the Health and Social Services Minister because there was no place for them in the youth protection system. The panel stated in its reprimand that, "Putting public administration on trial doesn't contribute to resolving the case of the child." The panel was dead wrong.

Judicial silence and inaction in the face of a system that does not work is nothing less than complicity in perpetuating the injustices it supposedly seeks to cure. And that is true for any muted voices of criminal court judges as well. Toeing the line is like doing the crime.

Justice Robert H. Jackson, the chief American prosecutor at Nuremberg, was asked why he insisted on putting German judges on trial who had served under the Nazi regime. After all his inquisitors asked, weren't they just following the laws that were on the books. His response is a lesson for the ages that we ignore at our peril. "When judges acquiesce to acting only within the narrow parameters of statutes of inherent evil, they are as complicit in the resulting crimes as the very men that created those evils."

Judge Ruffo chose not to acquiesce. It is a profile in courage that will not be vanquished. And if we remain silent, then the epitaph for Canada will be Alan Paton's poignant plea, "Cry, the beloved country."

Beryl P. Wajsman is the president of the Institute for Public Affairs of Montreal.

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